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WASHINGTON -- Does the federal government need more power to go after colleges that mishandle sexual assault cases, or has it already overstepped its authority in telling colleges how to handle those cases?
That was the question raised Thursday by a pair of heated exchanges between a senior Department of Education official and the top two lawmakers on the Senate education committee during a Higher Education Act reauthorization hearing.
Catherine E. Lhamon, the assistant secretary of education for civil rights, faced pointed questions from Senator Tom Harkin, the Democrat who chairs the committee, about whether the Education Department had enough tools to enforce Title IX, the federal anti-discrimination law that has implications for how colleges handle sexual assault cases.
The only penalty that the Education Department can impose on a college for not complying with Title IX is a complete removal of federal funds.
Harkin asked whether the department needed the authority to impose less drastic and more intermediate fines. That idea has also been floated by Senator Claire McCaskill, the Missouri Democrat who is working with several other lawmakers on new legislation to combat campus sexual assault.
“I think I have all the authority I need. It’s not my view that we lack a tool that is meaningful for us,” Lhamon said. She added: “The importance of the threat of withholding federal funds is something that should not be undermined, and that is something that has been an effective tool for us.”
“I’m not certain that it is a very good option,” Harkin responded. He said that many victims’ advocates have pushed for the department to have the authority to require Title IX violators to divert funds to prevention or training programs.
Lhamon said that while the department has never exercised its authority to cut off federal funds from a college for Title IX violations, it serves as important leverage in negotiating with colleges. The threat of a loss of federal funds has prompted colleges to work with the department to make changes, she said.
Lhamon said that her office’s tussle with Tufts University earlier this year was “the best example of how well that tool is working for us.”
In that case, the Education Department’s Office for Civil Rights found that Tufts’s policies for sexual assault had violated Title IX. Surprised by and unhappy with that finding, Tufts withdrew its signature from an earlier agreement with the department to settle the case. After Lhamon sent the university a letter threatening to initiate a termination of its federal funding, Tufts relented and recommitted to the settlement.
Some victims’ advocates have said that the Education Department should impose penalties -- monetary or otherwise -- on colleges that it determines violated Title IX, instead of always negotiating a settlement. Under current law, the department is required to try to negotiate a voluntary settlement.
Federal Overreach?
Across the aisle, meanwhile, Senator Lamar Alexander, the top Republican on the panel, pushed back against the federal government’s role in telling colleges how to handle sexual assault cases.
He suggested that the Obama administration had overstepped its authority in providing official guidance to institutions on how they must handle sexual assault cases. A landmark piece of such guidance in 2011 raised the bar for what colleges must do in sexual assault cases in order to comply with Title IX. The administration earlier this year released a question-and-answer document to further clarify the 2011 guidance.
“You’re just making an edict without any chance for public comment, without any regulatory approval,” Alexander said, noting that he thought that sub-regulatory guidance was a problem across other agencies as well.
“What you’re doing is writing out detailed guidance for 22 million students on 7,200 campuses and it could be your whim, your idea,” he told Lhamon. “We make the law, you don’t make the law.”
Lhamon said that her confirmation by the Senate gave her the authority to offer guidance to institutions about what the law says.
“Those are not just my opinions; that is actually what the law is,” she said. “It’s an explanation of what Title IX means on campus.”
Warning To Colleges
In her testimony before the panel on Thursday, Lhamon also touted the Obama administration’s efforts to combat campus sexual assault.
She also indicated that the administration’s crackdown on institutions for Title IX sexual assault violations would continue.
“Some schools are still failing their students by responding inadequately to sexual assaults on campus,” she told the panel. “For those schools, my office and this administration have made it clear that the time for delay is over.”
